R (CXF) v Central Bedfordshire Council [2017] EWHC 2311 (Admin), [2017] MHLO 30

"The central question raised in these proceedings is whether either or both of the Defendants has a duty under s117 of the MHA to cover the costs of the Claimant's mother's visits, on the ground that they constitute "after-care services" within the meaning of that provision. ... The specific issues that arise are as follows: (a) Whether the duty to provide after-care services under s117 is triggered when the Claimant is granted leave of absence from the Hospital under s17 of the MHA for an escorted bus trip. This issue turns on the question whether, when granted such leave of absence, the Claimant satisfies the two pre-conditions set out in s. 117(1), namely, (i) that he has "ceased to be detained" under s3 of the MHA, and (ii) that he has "left hospital"; (b) If so, whether the after-care services which are to be provided pursuant to s117(6) of the MHA may as a matter of principle include funding to cover the Claimant's mother's transport costs; (c) If so, whether on the facts of this case there is a duty to provide the funding sought as an after-care service under s117; (d) If so, whether the duty to provide the services falls on the First and Second Defendants jointly, or in fact falls on the First Defendant jointly with Bedfordshire Clinical Commissioning Group, which was originally joined as a Defendant to these proceedings, but against which proceedings were discontinued in March 2017."

Mind

The summary below is reproduced from Mind, 'Legal Newsletter' (December 2017).

Patients on section [17] leave will not necessarily receive section 117 aftercare services.

CXF was 18 years old with autism and detained under section 3 of the Mental Health Act 1983 (MHA). He was detained around 240 miles away from his mother, who visited him weekly at significant cost to herself. During her visits she would accompany CXF on outings by bus and supervised by hospital staff.

Before he turned 18 CXF’s mother was reimbursed the expenses of these visits under section 17 of the Children Act 1989. This was stopped following his 18th birthday. CXF, through his mother, brought a judicial review claiming that these costs now fell to be met as an aftercare service under section 117 MHA.

Miss Rose QC set out four issues raised in the appeal, including whether the transport costs claimed could fall within the ambit of section 117, but dismissed the claim on the basis that section 117 was not triggered when CXF went on his bus trips. She referred to "pre-conditions" in section 117(1) and ruled that aftercare will only be triggered when a person has "ceased to be detained and left hospital", which CXF had not:

"On the facts of this case, I consider that it is clear that the Claimant remained at all times detained in the Hospital, and that he had not 'left hospital', even when he was enjoying leave of absence under s.17. The leave of absence granted to him permitted short excursions by bus, and required him to be escorted and supervised at all times by two members of the Hospital's staff. He was at all times deprived of his liberty, and under the care and control of the Hospital." [at 42]

CXF’s leave was contrasted with that in R v Richmond London Borough Council, ex parte Watson (1999) where a period of trial leave at a care home did correctly trigger section 117.

Miss Rose QC noted paragraph 27.26 of the Code of Practice which states that the duty under section 117 "applies to those patients while they are on leave of absence", but considered that this did not undermine the need for the patient to have ceased to be detained and left hospital.

Comment

There is very little case law on what constitutes an aftercare service, and most of this has been in the context of accommodation. It is unfortunate from our perspective that instead of consideration on this point this judgment has unravelled one of the few clear points of law relating to section 117: that those on section 17 leave are entitled to it. The clear statement to this end has been included in the 1999, 2008 and 2015 versions of the Code of Practice and, as far as we are aware, was accepted in practice.

Patients who require support while on leave will now be in a very difficult position. We know that support under section 117 is already very difficult for people to understand, and this judgment may worsen that. A patient may now be told that aftercare is not triggered in their case and they could be left without the support they need to have leave. This refusal could be challenged by judicial review but this will not be an option for most.

While the judgment does not provide much guidance as to when section 117 will be triggered in any particular case, we would suggest that the following factors will need to be considered:

  1. The length of the leave
  2. The level of restriction while on the leave, including whether they amount to a deprivation of liberty; and
  3. The purpose of the leave.

The judgment can be found here.


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